DAVID E. BERNSTEIN
DBERNSTE at WPGATE.GMU.EDU
Thu Jul 6 16:20:47 PDT 2000
I am wondering why Marty thinks that the fact that Dale was an assistant
Scoutmaster, and thus a leader/spokesperson for the Scouts
(1) isn't the basis of the Court's ruling; and
(2) doesn't distinguish Dale from Jaycees (members, not leaders), U of P
(professors, whose views are not expected to represent those of the
university as such), and AP (employees of a wire service)?
David E. Bernstein
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
dbernste at wpgate.gmu.edu
>>> "Lederman, Marty" <Marty.Lederman at USDOJ.GOV> 07/06/00 02:43PM >>>
Mark Tushnet asks: "After (and maybe even before) Dale, is there any
need for a free exercise argument independent of a right to expressive
association argument, to support whatever it is that the clerical
privilege protects? That is, given the existence of a right of
expressive association, does the Free Exercise Clause make any
independent contribution to protection
churches' institutional autonomy?"
Answer: Yes. One thing (one of the only things) about Dale that is
clear is that the Court did *not* accept the BSA's argument that
"expressive associations" have an absolute right to choose their
"spokespersons," analogous to the ministerial exception to title VII.
Such a holding would have established a quite radical limitation on the
nation's civil rights laws, and would have (as Dale did not) meant
overruling cases such as AP v. NLRB, EEOC v. Univ. Of Pa., etc. (as well
as the Roberts trilogy itself, presumably).
Marty Lederman (in my private capacity)
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